old servants. Lord Thurlow was much against the will, and two issues were directed as to its validity, in both of which it was established. Lord Chief Justice Eyre, before whom it was tried, stated to the Jury that the point was, whether the testator knew perfectly what he was doing, and that they were not to enter too minutely into considerations of influence (1). In another case, the plaintiff, a devisee, sought by his bill to establish a will; the defendant, the heir-at-law, was an infant, and insisted that the testator was insane when he made the will. From the evidence adduced in the cause, it was clear the testator was not insane. The Vice-Chancellor said " An heir is, in these cases, entitled to an issue, devisavit vel non; the Court cannot refuse it if asked for; but, if the counsel for the infant heir is clear, from the evidence, that there is no ground to impeach the will, he is well justified in declining to ask for an issue” (m). To prevent the frauds consequent upon the secret manner in which wills were formerly executed, the statute of frauds (n) requires every will disposing of real estate to be in writing, and signed by the devisor, and attested and subscribed in his presence, by three credible witnesses. In the construction of this statute, therefore, it has been holden, that the Legislature, when it required the witnesses to attest the signing, must, by implication, have required them to attest the capacity of signing; for, it was not merely the abstract act or form of signing which the Legislature intended as one necessary solemnity to the constitution of a devise, for, an idiot or lunatic might put his name to an instrument, and yet be perfectly ignorant of its contents; but the Legislature, in the word "signing," comprehended another idea, namely, signing an instrument, intending it to be a will; consequently, the mental power or capacity of willing was necessary, as well as the corporal power of putting the mark or name to constitute a signing. The business, then, of the persons required by the statute to be present at executing a will, is not barely to attest the corporal act of signing, but to try, judge, and de (1) Bennett's case, cited 9 Ves. 185; S. C. 1 Cox, 353. (m) Levy v. Levy, 3 Madd. 245. (n) 29 Car. 2, c. 3, s. 5. termine, whether the testator is compos to sign ("); sanity is the great fact which the witness has to speak to, when he comes to prove the attestation, and that is the true reason why a will can never be proved as an exhibit vivá voce in Chancery, though a deed may; for there must be liberty to cross-examine as to sanity (o). In conformity to this doctrine, it was said by Lord Chancellor Hardwicke (p), that it had been determined over and over again, in the Court of Chancery, that it must be shewn that the devisor was of sound and disposing mind when a will was to be established as to real estate; proving that it was well executed, according to the statute of frauds and perjuries, was not sufficient. It is not sufficient that the testator be corporally present when he signs his will, if, in truth, he be in a state of insensibility, and, consequently, absent as to mental purposes (q). The execution of a will, disposing of real estate, is to be proved by the subscribing witnesses, if they are alive, and can be produced. On a trial at common law, all the circumstances may be proved by a single witness, provided there were actually three witnesses, as the statute of frauds requires (r). But, though the devisee need not call more than one witness, the opposite party may call the other subscribing witnesses. Should one of the witnesses refuse to swear that he saw the testator publish his will, if that fact can be proved by other sufficient testimony, the fraud of the obstinate witness will not be sufficient to defeat the testator's will (s). In the Court of Chancery, it is the general rule never to establish a will, unless all the witnesses are examined: because the heir has a right to evidence of sanity, from every one of those whom the statute has placed round his ancestor, as guards against fraud. This is not a mere technical rule. The design of the statute was to prevent wills which ought not to be made; and operates silently, but forcibly, by intestacy (1). But, though the general rule of the Court of Chancery be, that all the subscribing witnesses must be examined (u); yet it would be laying down the rule too largely to say, that in no case can a will be proved in equity, without such complete examination (v). In a recent case, where an heir-atlaw filed a bill to set aside a will, and the Court directed an issue to try the capacity of the testator, and all the subscribing witnesses to the will had not been examined on the trial, it was held, on a motion for a new trial, that the rule did not apply to the case of an heir attempting to impeach a will (w). It was long ago held, that when the best endeavours have been used to discover and bring forward a witness, if those efforts are fruitless, the witness may be considered as dead (x). The rule, that the proof of the death of an attesting witness must be positive (y), is to be understood with some qualification; for, where one of the witnesses to a will of real estate had since become insane, proof of the handwriting of such witness was allowed, as if he were dead (≈). A person who signs his name as witness to a will, by this act of attestation solemnly testifies the sanity of the testator. Should such witness afterwards attempt to impeach his own act, and to prove that the testator did not know what he was doing when he made (what purported to be) his will, though such testimony will be far indeed from conclusive (a), and Lord Mansfield even held, that a witness impeaching his own acts, instead of finding credit, deserved the pillory (b)— yet, Lord Eldon has not gone so far in exclusion of such evidence, admitting, however, that it is to be received with (t) Hindson v. Kersey, 4 Burn's Eccl. Law, 97-102; Bootle v. Blundell, 19 Ves. 500; S. C. Cooper, 138. (u) Townsend v. Ives, 1 Wils. 216; Ogle v. Cook, 1 Ves. sen. 177. (v) Powell v. Cleaver, 2 Bro. C. C. 503. (w) Wright v. Tatham, ante, pp. 55-57. Rep. 614. And see Burrowes v. Lock, (a) Hudson's case, Skinn. 79; Digg's case, cited ibid. (b) Walton v. Shelley, 1 T. R. 300; Lowe v. Jolliffe, 1 Sir W. Bl. 366; (x) Anon. Godbolt, 326; M'Ken- Rex v. Nueys and Galey, Id. 416; ire v. Fraser, 9 Ves. 6. (y) Bishop v. Burton, Lowe v. Jolliffe, 1 Dick. 389; GoodComyn, title v. Clayton, 4 Burr. 2225. the most scrupulous jealousy (c). Sir John Nicholl has perhaps laid down the most distinct rule, namely, that such testimony is not to be positively rejected; but, at the same time, no fact stated by a witness open to such just suspicion can be relied on, where he is not corroborated by other evidence (d). In a case pregnant with appearances of fraud, and resting for support on the attesting witnesses alone, these witnesses must be beyond suspicion; if at all shaken in credit, no part of their evidence can be relied on (e). It is possible, that a testamentary instrument may be established against the evidence of all the subscribing witnesses; but such a case would require strong supplementary circumstances would require to be supported by the whole res gestæ, by strong probability arising from the conduct of all parties, and by the improbability of the practice of any fraud or circumvention, or the exercise of undue influence (f). And it has been lately decided, that a will may be pronounced for, though both the attesting witnesses depose to the incapacity of the deceased (g). The issue devisavit vel non always implies in it, where the execution is not the point in issue, a question of the capacity of the testator; that is, either his absolute capacity, or his relative capacity, where it is supposed that the particular instrument was the effect of that undue influence, which necessarily implies a degree of weakness at the time, and quoad that instrument, making it not an instrument arising from the fair bias of his own mind, but from the exercise of that improper influence (h). Where the evidence proves the execution of a will, but the witnesses have not been examined as to the sanity of the testator, the cause will be adjourned at the hearing, and liberty will be given to exhibit an interro (c) Bootle v. Blundell, 19 Ves. 504; Howard v. Braithwaite, 1 Ves. & Bea. 208. (d) Kinleside v. Harrison, 2 Phill. 499. And see Burrows v. Lock, 10 Ves. 474. R. 288. (f) Per Sir J. Nicholl, 2 Hagg. Eccl. R. 219. See ante, pp. 54, 55. (g) Le Breton v. Fletcher, 2 Hagg. Eccl. R. 568. (h) Bates v. Graves, 2 Ves. jun. (e) Brydges v. King, 1 Hagg Eccl. 288, 289. gatory to prove his sanity (i). Where a Court of law has decided in favour of a will, objected to on the ground of the testator's insanity, a Court of equity will not direct a second trial without strong reasons. A bill was filed by the devisees, under the will of Lord Chedworth, to have the will established, and the trusts carried into execution. An issue devisavit vel non was desired by the heir-at-law, suggesting incompetency in the testator. Upon the trial of that issue, in the Court of King's Bench, a verdict was found, establishing the will upon very clear and strong evidence of capacity apparent from the conduct of the testator, particularly his acting as a magistrate, and as chairman at the quarter sessions, and performing his duties in the House of Lords, opposed only by some circumstances of eccentricity and irregularity in dress, which came out principally upon the cross-examination, his heir having examined only one witness. A motion was made by the heir-at-law for a new trial, upon a suggestion of the expectation of further evidence, and an affidavit by Dr. Parr, expressing his opinion that the testator had not been of a perfectly sound mind, from a propensity to insanity, perhaps subsisting from his birth, and promoted by certain circumstances of his life. On the other side, several letters from Dr. Parr to the testator were produced, consulting him upon subjects of literature, expressing in strong terms an opinion of his good sense and talents, and, in one instance, recommending a clergyman for a living in his Lordship's gift, the offer of which Dr. Parr declined for himself. Lord Erskine said, that he should be very sorry to find a rule in the Court of Chancery, that there must be a second trial of an issue if desired, without any ground laid for it. And in a case, therefore, of a man exercising all the great public duties, which it was proved the testator in that case did, it must be shewn that he, nevertheless, had a morbid image in his mind upon a particular subject, so wide from sound understanding, that he ought not to be considered in that state; but there being no evidence of the existence of such a morbid image connected with the will in question, a (i) Abrams v. Winshup, 1 Russ. 526; Wallis v. Hodgeson, Id. 527, n.; S. C. 2 Atk. 56. |